The essence of the ESTA is a requirement that foreign citizens who "intend" (so much for spontaneous travel!) to visit the USA will be required to get permission from the government of the USA before they leave their own home countries. As we point out in our comments, and as airlines have objected in similar cases, the USA has no jurisdiction over foreigners leaving foreign countries. And their right to leave any country is expressly protected by human rights treaties signed, ratified, and binding on the USA.

In their comments, airlines and travel agencies have objected that the CBP is "wrong" to implement the ESTA on an emergency basis, without the public notice and opportunity for public comment normally required for new Federal regulations. But the CBP began accepting "voluntary" applications for travel authorizations this week, through a (still buggy) Web interface. The CBP says they plan to issue an order later this year to make the ESTA system mandatory starting sometime in January 2009.

Countries that participate in the USA Visa Waiver Program (VWP), mainly in Europe, are still considering whether it amounts to a de facto visa requirement for their citizens to visit the U.S. This could prompt them to reciprocate by ending visa-free entry to their countries for U.S. visitors, and requiring U.S. visitors to apply for permission before embarking for Europe.

The DHS admits that the ESTA "travel authorization" partially duplicates the international APIS travel permission regulations that went into effect in February 2008. But airlines' comments on the ESTA rules suggest that they may not yet have been able to build the real-time messaging links and other systems necessary to implement the APIS requirement for DHS "clearance"before each boarding pass is issued on an international flight to the USA. Earlier, airlines warned the DHS that its APIS timetable was technically impossible, and I suspect they may have been right.

Already furious at the billions of dollars they are having to spend on APIS implementation, airlines and travel agencies are now even angrier that the DHS plans to require three different, overlapping, permission systems for international travelers -- APIS clearance, ESTA travel authorizations, and Secure Flight requirements supposedly due to be published soon -- each announced at a different time (so that systems couldn't be designed once to accommodate them all), and each requiring different data to be collected and submitted, and a different type of permission, obtained through a different mechanism, at a different stage of the travel reservation, ticketing, check-in, and travel process.

Would-be travellers who don't receive a "travel authorization" won't have any recourse under USA law: in late 2007, the DHS got Congress to exempt decisions to issue or withhold "travel authorizations" from the jurisdiction of Federal courts. As we note in our comments, however, the courts retain jurisdiction to decide whether the requirement for a "travel authorization", or the specifics of the ESTA rules, are themselves Constitutional or authorized by law.

The attempt to keep DHS travel "permission" decisions from being reviewed by the courts has been an explicit, long-term, goal of Secretary of Homeland Security Michael Chertoff. In a speech in 2006 (worth reading in its entirety for its contemptuous but detailed analysis of international law as it relates to human rights, travel, and Passenger Name Record data), Chertoff had this to say about DHS decisions not to allow people to fly:

Question: Mr. Secretary, my question concerns no-fly lists. How do you get on a list? How do you get off a list? And why not give the American citizen his day in court to contest the proposed action of your department?

Secretary Chertoff: Well, if you want to get on the list, I think I probably can put you on....

[W]e judge through an inter-agency process whether someone ought to be put on the no-fly list. And the list is then transmitted to the airlines and winds up then being a basis to deny people....

People can -- if they have an issue with it, they can raise an issue with it. But we don't conduct court hearings on this. We don't believe first of all, almost all the information is classified; second, because I'm quite sure that the 19 hijackers, if we could replay history, would have contested being on a no-fly list, and we're not about to let them do that; and third, because we would be inundated with proceedings....

[W]hen we actually have identified a person ... and we put them on the list ... it's not a subject for litigation.

Wired.com: At what point do stops by law enforcement and four-hour holdups at the airport become a punishment that you can actually protest?

Chertoff: ... [I]f they do raise an issue, we will take a look at what the basis is. And sometimes we will make adjustments.

But if you are asking if we would do a court process where we litigate it, I mean, that effectively would shut it down.

And then I guarantee what would happen is this: If you stopped using the watch list and basically anybody could get on a plane without knowing their identity, sooner or later something would happen -- and people would lose their lives, and then there would be another 9/11 Commission and we'd hear about how you had this system and you would have kept them off and these people lost their loved ones on a plane.

In effect, Chertoff -- himself a former Federal judge -- is admitting that he is running a program he knows wouldn't stand up to scrutiny by a Federal judge. And he is so confident of the superiority of his own judgement over those of his former colleagues on the bench that he isn't willing to take the "risk" of making his case to one or more of them.

[Adendum, 11 August 2008: The most interesting of the other comments on the ESTA rule are those of the international airline trade association, IATA. The airlines raise many of the arguments raised by the Identity Project, and others, including the incompatibility of ESTA with EU data protection law. Despite public claims by the DHS that would-be travellers without "travel authorizations" could be denied boarding, the airlines don't agree. On the contrary, they say they would be liable for damages to anyone they refused to transport because they didn't have a travel authorization: "[T]he legal requirement for ESTA does not require that a passenger must be denied travel if a valid ESTA is not in place. However, if the passenger is transported, then they will be denied entry and the carrier held financially liable under Section 273 of the Immigration and Nationality Act. Carriers may be faced with a significant number of passengers in this situation. To further complicate matters, in the absence of a regulatory requirement to deny boarding in these instances, carriers could incur significant liabilities for payment of Denied Boarding compensation under existing national legislation in place in the countries of origin." Regulations.gov doesn't allow direct links to individual documents, but you can find the IATA comments by choosing "comments closed" (the default is "open for comments") and searching for document USCBP-2008-0003-0020.1.]

Hi, excellent post!
ESTA does not really allow for spontaneous travel to USA, does it? The thing is that the U.S. Government advise to apply for ESTA at least 72 hours before your travel, but you can do it even later (at least that is what I have read on http://www.estavisaapplication.co.uk/). Still you can't simply go there without proper preparation (which is good and bad I guess).

Posted by: Pete, 16 July 2009, 02:12 ( 2:12 AM)

I have visited many different ESTA application websites so far and I think it it fair to say that most of them seem dodgy. The thing is I do not like the US Goverment's website, not to mention that if you have additional questions (not covered on their website), it is really hard to reach them.

Posted by: Judith, 2 March 2010, 04:07 ( 4:07 AM)

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